What's Wrong With The Supreme Court Bar?
Not long ago, I enjoyed dinner with none other than Charles Fried, a former solicitor general of the United States, and a long-time Harvard law professor. (He quipped that he had thrice been voted tenure, having moved in and out of the academy in the course of his career.)
Fried is everything I am not -- he is witty, urbane, self-assured. It was hard not to feel envious of the man. While I cannot say he was born to the manor, he inhabits a rarefied world. My world is plenty more visceral and a whole lot less prestigious.
The two of us had been invited to participate in a discussion on appellate advocacy by Sonia Sotomayor of the Second Circuit. She teaches a seminar at the Columbia law school.
I get invited to do things like this from time to time, and it always surprises me. I figure I am usually the entertainment section of a program. Let the serious speakers trot out their doctrinal statements and learned comments. Then I waltz in for comic relief. If Fried's and Sotomayor's presence, I felt that I was there perhaps to serve the refreshments. As the evening began, I was intimidated; the weight of the chip I carry on my shoulder oppressed. It was hard to shake off.
I had dinner with Fried and Sotomayor later that night at a quiet spot in Manhattan. It will remain memorable for as long as I practice law. There was a "pinch me" quality to the entire experience that remains with me still. Fried represented the United States before the Supreme Court; Sotomayor may well be on her way there as a justice. Me, I was due in court the next morning on a child sex case. It seemed dissonant.
One comment Fried made in the course of the evening has stuck with me. We were discussing the sorts of pressures a lawyer feels in a high-stakes case. I said something about my heart's having been broken in one case or another. Fried did not miss a beat. "My heart has never been broken by a client," he said.
I was surprised by that remark. On reflection, I feel bad for Fried. The law is about human drama and private turning points made public. Heartbreak really is part of the turf. I believe the professor said he'd never stepped foot in a courtroom until the age of 50.
Fried's argued some 26 or 27 cases before the Supreme Court. He argued Daubert, a case that remade the law on the use of expert testimony in our courts. And he has written wise and wonderful books on the law.
But somehow I came away saddened. All the brilliance in the man but yet no blood left on the floor of his local court. I wonder whether that same sort of cerebral detachment typifies the Supreme Court bar, and the justices themselves. I suspect it is so. So much the worse for the law.